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Articles 1 - 30 of 165
Full-Text Articles in Law
Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld
Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld
Brooklyn Journal of Corporate, Financial & Commercial Law
"The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that, aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability. Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of …
In The Duty Wars, I'M Switzerland, W. Bradley Wendel
In The Duty Wars, I'M Switzerland, W. Bradley Wendel
Brooklyn Journal of Corporate, Financial & Commercial Law
The “duty wars” have been raging among tort scholars for some time, sparked by the Third Restatement’s deflationary approach to the duty element of the negligence cause of action. Defenders of the traditional approach to duty insist that it is necessary to ensure that tort law stays on the right side of the boundary between public and private law insofar as the negligence tort recognizes a relational conception of rights owed among individuals. The worry is that negligence shorn of the duty element becomes an instrument of efficiency or deterrence rather than recognizing obligations. Relatedly, the approach pioneered by the …
Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz
Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Not All Product-Caused Harm Is "Products Liability", Michael D. Green
Not All Product-Caused Harm Is "Products Liability", Michael D. Green
Brooklyn Journal of Corporate, Financial & Commercial Law
"Since two important federal preemption decisions by the United States Supreme Court, those injured by warnings defects in the drugs they take may sue the manufacturer only if the patient took a brand-name drug. Those who took the generic version of the drug, which comprise approximately 90 percent of all prescriptions, cannot sue the drug manufacturer regardless of how inadequate its labeling is in explaining the risks of consuming the drug. Clever plaintiffs’ lawyers began bringing suits on behalf of their generic-drug-consuming clients against brand-name manufacturers that, under the Food, Drug, and Cosmetic Act, control the labeling both on their …
Professor Aaron Twerski: Special Master In The 9/11 Responders' Litigation, Stephan Landsman
Professor Aaron Twerski: Special Master In The 9/11 Responders' Litigation, Stephan Landsman
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Enterprise, Liability, And Insolvency: An Essay In Honor Of Aaron Twerski, Edward J. Janger
Enterprise, Liability, And Insolvency: An Essay In Honor Of Aaron Twerski, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
Modern tort law links concepts of duty, duty of care, causation, and compensatory damages in a manner that, it is hoped, simultaneously communicates moral suasion, redresses wrongs, and incentivizes “reasonable” socially appropriate behavior. Deterrence and corrective justice differ fiercely about the scope of and rationale for liability, but both assume that tortfeasors are good for their debts (or at least insured). This is not always the case. Sometimes, debtors are insolvent. Bankruptcy law provides individuals with a route to a fresh start, and this paper considers the relationship between modern tort law and the discharge of debt in bankruptcy. The …
Aaron Twerski — Practical Wisdom At Ground Zero, Anthony J. Sebok
Aaron Twerski — Practical Wisdom At Ground Zero, Anthony J. Sebok
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …
The Constitutional Claim To Individuation In Tort — A Tale Of Two Centuries, Part 2, Douglas A. Kysar
The Constitutional Claim To Individuation In Tort — A Tale Of Two Centuries, Part 2, Douglas A. Kysar
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article—drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School—draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who “had their feet firmly planted in two different centuries—one foot in the nineteenth century and the other in the twenty-first century.” This Article takes inspiration from Twerski’s “two centuries” metaphor to examine the rise of constitutional objections by defendants to certain doctrinal innovations that attempt to adapt tort law to modern ways of causing, identifying, and …
Getting The Law Right: An Essay In Honor Of Aaron Twerski, John C. P. Goldberg, Benjamin C. Zipursky
Getting The Law Right: An Essay In Honor Of Aaron Twerski, John C. P. Goldberg, Benjamin C. Zipursky
Brooklyn Journal of Corporate, Financial & Commercial Law
Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current …
Engaging With Professor Twerski In The Choice Of Law Revolution, Robert A. Sedler
Engaging With Professor Twerski In The Choice Of Law Revolution, Robert A. Sedler
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
It's Finally Time For A National Data Privacy Law: A Discussion Of The American Data Privacy And Protection Act (Adppa), Erin J. An
Brooklyn Journal of Corporate, Financial & Commercial Law
Millions of Americans face unprecedented privacy risks related to their data, often without their awareness. With the increasing value of consumer data and its growing utilization by businesses, there is a growing demand for greater transparency and privacy protections. As of 2023, no comprehensive federal law governs data privacy in the United States, leaving citizens with limited protections. Introduced to Congress on June 21, 2022, the American Data and Privacy Protection Act (ADPPA) successfully passed the House of Representatives Committee on Energy and Commerce, making it the furthest a national comprehensive data privacy bill has progressed through the federal legislative …
Punishing Debtors In Bankruptcy During Covid-19, David Y. Kamins
Punishing Debtors In Bankruptcy During Covid-19, David Y. Kamins
Brooklyn Journal of Corporate, Financial & Commercial Law
The 2019 Coronavirus Pandemic (COVID-19) led to widespread government-mandated lockdowns, causing numerous businesses to close their doors permanently. To assist financially distressed businesses and individuals during the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The Small Business Administration (SBA)—the agency tasked with implementing the CARES Act—distributed funds to individuals and businesses through the Paycheck Protection Program (PPP). Part of the SBA’s eligibility requirements to receive funding through the PPP included an exclusion provision that barred debtors presently involved in any bankruptcy proceeding from receiving any PPP funding. Many debtors in bankruptcy filed suits in …
The Digital Advertising Tax: An Overstep By State Taxing Jurisdictions, Sammy Reisner
The Digital Advertising Tax: An Overstep By State Taxing Jurisdictions, Sammy Reisner
Brooklyn Journal of Corporate, Financial & Commercial Law
In 2021, the Maryland Senate voted to override the governor’s veto to pass House Bill 732, marking the enactment of the first digital advertising tax in the United States. The tax imitated existing digital services taxes that have become popular internationally. Recognizing the need for a global solution, the OECD and the G20 formed the Inclusive Framework to ensure that countries receive their fair share of taxes without subjecting businesses to double taxation. Domestically, however, no such resolution has been reached, and several other states, inspired by Maryland’s initiative, followed suit by introducing their own versions of a digital advertising …
Copyrighting Compositions: How Inconsistencies Within The Circumstancial Evidence Analysis Affects Musical Composition Copyright Infringement Plaintiffs, Stephanie Stern
Copyrighting Compositions: How Inconsistencies Within The Circumstancial Evidence Analysis Affects Musical Composition Copyright Infringement Plaintiffs, Stephanie Stern
Brooklyn Journal of Corporate, Financial & Commercial Law
To resolve a musical composition copyright infringement case, courts employ the circumstantial evidence analysis. This analysis involves assessing whether the two works are substantially similar and whether the defendant had access to the plaintiff’s copyright-protected work. Despite efforts to keep pace with the rapidly changing world of music creation, these tests have fallen behind: circuits are split with respect to the way they determine substantial similarity, and courts have failed to update the access requirement in the age of the internet. Additionally, courts must adhere to the rules of either the 1909 Copyright Act or the 1976 Copyright Act, depending …
Drowning Unicorns: The Case Against More Disclosure In Private Markets, Matthew Whang
Drowning Unicorns: The Case Against More Disclosure In Private Markets, Matthew Whang
Brooklyn Journal of Corporate, Financial & Commercial Law
This Note traces the economic and legal factors that led to the proliferation of unicorn companies—private, venture-backed startups valued over one billion dollars—over the past decade and argues that unicorn companies should be subject to fewer security disclosures. A lighter disclosure regime fosters greater private-market illiquidity, which, in turn, better aligns an investor’s profit motive with prudential corporate management. Because they cannot flee at the first sign of trouble, shareholders are incentivized to play a more active role in overseeing management and eschew risky decisions that threaten the well-being of a company to avoid losing their investments. Given the dynamic …
Commercial Law Harmonization: The Role Of The United States, Hal Burman
Commercial Law Harmonization: The Role Of The United States, Hal Burman
Brooklyn Journal of Corporate, Financial & Commercial Law
The modern field of transnational commercial law harmonization began in the United States in the mid-1960s; the international basis of that began in the mid-1940s. Before that, a limited number of areas of private international law (PIL) had active participation of US interests, such as maritime law. US participation internationally effectively began in the middle 1960s. Developments parallel to commercial law have been significant in the areas of applicable law, jurisdiction, commercial arbitration, family law, and other fields – all important areas of transnational law, but beyond the scope of this symposium. Each of these areas of law, while affecting …
Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto
Limiting 28 U.S.C. § 1782: A Changed Landscape For Discovery In Private Commercial Arbitration Abroad, Jazmyne R. Barto
Brooklyn Journal of Corporate, Financial & Commercial Law
For decades 28 U.S.C. § 1782 has been used by foreign entities looking to compel discovery in the United States for use in commercial arbitration proceedings abroad. Despite the statute being in force since 1948, many federal courts were unsure of whether § 1782 could actually be used in international private commercial arbitration. The Supreme Court tried and failed to clarify the statute’s scope in 2004, leading to a circuit court split as to §1782’s applicability. Looking to end the controversy once and for all, during the Summer of 2022, the Supreme Court clearly stated that § 1782 might not …
Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Part Ii: Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas
Neil Cohen’S Contribution To Uniform Secured Finance Law, Spyridon V. Bazinas
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article discusses Neil Cohen’s contribution to uniform secured finance law and, in particular, to the UNCITRAL Model Law on Secured Transactions. It does so by focusing on the misgivings Neil Cohen had expressed before, and his reflections on those misgivings after, the preparation of the Model Law. The discussion presents Neil Cohen as is generally known, as a distinguished scholar, but also as he is known to his friends and colleagues, as a person with rare qualities.
Reforming The Law Reform Ecosystem, Timothy Schnabel
Reforming The Law Reform Ecosystem, Timothy Schnabel
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article outlines a series of reforms that would make global law reform efforts more effective and efficient. These efforts currently occur primarily in three multilateral organizations (UNCITRAL, UNIDROIT, and the Hague Conference). The member states of these organizations could easily increase coordination—even to the point of de facto consolidation of the organizations’ work—and could increase the attention given to selecting projects and promoting instruments. Additionally, the U.S. government could organize plurilateral law reform efforts outside these organizations and draw on U.S. domestic law reform efforts to identify new topics for work. Finally, non-government actors could themselves coordinate across the …
Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi
Same Old Story, New Solution: Force Majeure Deficiencies In The Wake Of Covid-19 And An Unorthodox Approach To Drafting It, Steven H. Dovi
Brooklyn Journal of Corporate, Financial & Commercial Law
On January 20, 2020, the Centers for Disease Control and Prevention reported the first laboratory-confirmed case of the 2019 Novel Coronavirus (COVID-19) on American soil.[1] On March 8, 2021—more than a year later—the United States District Court for the Southern District of New York decided Gap v. Ponte Gadea New York.[2] It ruled, inter alia, that the COVID-19 pandemic, in keeping with the relevant provision’s narrow tailoring, did not amount to a force majeure event and a defense to breach.[3] While seemingly one of the first decisions of its kind in the Southern District, this Note argues that the holding …
Navigating Name, Image, And Likeness Policy In College Athletics – Issues And Solutions, Daniel Erber
Navigating Name, Image, And Likeness Policy In College Athletics – Issues And Solutions, Daniel Erber
Brooklyn Journal of Corporate, Financial & Commercial Law
College athletics, specifically the NCAA, has faced legal challenges throughout its history. In the wake of Alston and other Supreme Court decisions regarding antitrust violations tied to student-athlete benefits, many states proposed and passed laws explicitly allowing student-athletes at NCAA institutions to utilize their names, images, and likenesses for commercial purposes. With the state laws in direct conflict with NCAA rules, college sports entered an era of extreme uncertainty. While the NCAA attempts to maintain its grip on the commercial endeavors of student-athletes and member institutions, states and society are pushing a free market agenda geared towards liberalizing the economic …
Sec V. Panuwat: The Federal Pursuit Of Shadow Trading, Kayla Kershen
Sec V. Panuwat: The Federal Pursuit Of Shadow Trading, Kayla Kershen
Brooklyn Journal of Corporate, Financial & Commercial Law
In 2021, the SEC filed a complaint against a biopharmaceutical executive, Matthew Panuwat, for trading on material non-public information in violation of both the federal securities laws and his employer’s company policies. However, because the subject of the confidential information was not his employer, but a similarly situated peer company, Panuwat’s conduct constitutes “shadow trading.” The SEC’s enforcement, and the Northern District of California’s subsequent approval, indicate that company insiders may face liability for shadow trading. However, as written, the SEC arguably bases its attachment of federal liability on the company policies that Panuwat was bound by and violated. This …
Banking-As-A-Service: Fintechs Walking The Regulatory Perimeter, Braeden Hodges
Banking-As-A-Service: Fintechs Walking The Regulatory Perimeter, Braeden Hodges
Brooklyn Journal of Corporate, Financial & Commercial Law
Financial technology (fintech) has ushered into today’s financial markets a wave of innovations that have revolutionized the way financial services are rendered and consumed. One such transformation is Banking-as-a-Service (BaaS): a partnership model through which nonbank businesses offer federally regulated banking products directly to consumers. By disintermediating the banking value chain, BaaS is democratizing access to financial services and lowering barriers to entry for many unbanked and underbanked individuals. These initiatives bring with them a number of concerns—such as data privacy risks, new forms of surveillance and discrimination, and economic instability—that are augmented by a systemic deficiency in regulators’ ability …
Entire Fairness Or Bust: The Burst Of The 2020-2021 Spac Bubble, Nicole Lynch
Entire Fairness Or Bust: The Burst Of The 2020-2021 Spac Bubble, Nicole Lynch
Brooklyn Journal of Corporate, Financial & Commercial Law
Special Purpose Acquisition Companies (SPACs) have skyrocketed in recent years as an alternative for taking private companies public through an initial public offering (IPO). SPACs are blank-check companies that raise capital through public exchanges for the “special purpose” of acquiring a privately held company. Once acquired, the private company will take the SPAC’s place on the public exchange, effectively accomplishing the same thing as a traditional IPO but without all the onerous reporting requirements and upfront costs. For these reasons, SPACs have become the next big thing in securities markets despite being around since the 1990s. Throughout 2020 and 2021, …
Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton
Frustrating Morals: Is There An Implied Reverse Morals Clause In Publishing Agreements?, Matthew L. Fulton
Brooklyn Journal of Corporate, Financial & Commercial Law
In response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called a morals clause. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to …
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
The Internet Is For Porn…Or Is It? Fair Access To Financial Services And The Need For Onlyporn Legislation, Emily Pollak
The Internet Is For Porn…Or Is It? Fair Access To Financial Services And The Need For Onlyporn Legislation, Emily Pollak
Brooklyn Journal of Corporate, Financial & Commercial Law
Historically, the pornography industry has been the target of countless attempts to delegitimize sex work, but it still endures as a legal industry. Nevertheless, financial service providers such as banks and third-party payment processors have circumvented providing the industry fair access to their services, under vague pretexts such as reputational risk. While porn is not the only marginalized industry affected by unfair treatment from financial service providers, it is among the most targeted. This note gives context to this issue and provides that access to the global marketplace should not be limited by financial institutions functioning as de facto legislators, …
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the …